by Mark Bauman | Apr 26, 2023 | Legal News, Medical Malpractice
In an opinion filed on April 28, 2011, the Pennsylvania Supreme Court held that the MCARE Fund was obligated to cover a shortfall in a plaintiff’s award in a case involving multiple joint tortfeasors who were held jointly and severally liable.
The underlying case at issue involved allegations of negligent care rendered by defendant physicians, to the plaintiff’s deceased wife from 1992 to 1996. Following a trial conduced in August 2000, a jury, attributing a substantial percentage of fault to the decedent, adjusted a verdict of over $1 million to $707,000, and thereafter apportioned the amount among the defendant physicians pursuant to joint and several liability.
During the time at issue, defendant physicians each maintained primary professional liability coverage in the amount of $200,000 per occurrence under a policy issued by a now-insolvent private insurer. Because of the insurer’s insolvency, the Pennsylvania Property and Casualty Association thereby took over the claims, but with a coverage limitation of only $300,000 per claim. Nonetheless, the primary insurer’s obligation to plaintiff exceeded this cap by $100,000, which ultimately, was attributed to one of the defendant physician’s share of the verdict. Thereafter, the MCARE Fund determined that it had no responsibility to redress this $100,000 shortfall, and as a result, plaintiff sought to execute against the assets of the physician’s practice group for the unpaid portion of his judgment. Upon reaching a settlement of $125,000, plaintiff then took the position that MCARE was liable to him for this amount.
The Commonwealth Court of Pennsylvania ruled in favor of plaintiff. Consequently, the Fund lodged an appeal to the Supreme Court, stating that, as a straightforward matter of statutory construction, MCARE is obligated to pay claims only when the health care provider’s liability exceeds basic coverage, even in cases of joint and several liability. Plaintiff, on the other hand, argued that the MCARE Act does not provide a method for calculating the Fund’s obligations with liability is apportioned among multiple tortfeasors, and that as a result, the doctrine of joint and several liability should prevail over the Fund’s construction of the MCARE Act.
Notwithstanding the “strong argument” propounded by the Fund, i.e. that Pennsylvania law does not authorize MCARE to compensate for a shortfall arising from an insurer’s insolvency undermining a health care provider’s own line of primary coverage, the Court determined that a deficiency in the primary coverage of another health care provider, which ultimately is chargeable to the physician-claimant only on account of joint and several liability, is a novel issue.
As such, the Supreme Court noted that at the time plaintiff’s cause of action accrued, excess liability protection was provided to health care providers through a government-run contingency fund known as the Medical Professional Liability Catastrophe Loss Fund, a.k.a. the “CAT Fund.” In 2002, the CAT Fund’s statutory liabilities were transferred to the MCARE Fund. According to the Court, under the statutory scheme governing CAT Fund liabilities, the CAT Fund’s excess coverage responsibility to a health care provider was measured from the baseline of the provider’s own primary coverage.
Because the judgment in the underlying case was issued under the regime of the CAT Fund, the Court held that responsibility for this liability would ultimately now fall upon the MCARE Fund, which, as the Court noted, established a provider’s own primary coverage to be the boundary between what is primary and what is excess, relative to that provider. The Court therefore concluded that because the defendant physician’s $200,000 “basic coverage insurance” represented the baseline in the case at bar, the liability the physician bore for the shortfall in primary coverage fell within the CAT Fund’s excess coverage obligation, relative to the defendant physician. Accordingly, it was held that in order to satisfy the shortfall in coverage, the benefits of MCARE would remit to the defendant physician, and ultimately, to Plaintiff.
by Mark Bauman | Apr 25, 2023 | Legal News, Medical Malpractice
On January 4, 2011, the Commonwealth Court of Pennsylvania held in Polyclinic Medical Center v. Medical Care Availability and Reduction of Error Fund, that the Medical Care Availability and Reduction of Error Fund (MCARE) is not required to provide insurance coverage for injuries caused by other patients as opposed to the hospital’s health care providers and/or their agents.
In the underlying claim, in December 1993, a female patient sued a hospital for personal injuries she sustained by another patient while in the hospital’s psychiatric unit. The other psychiatric patient, a male, took a wheelchair, that was openly stored in the unit, and ran into the female patient’s left ankle and leg. The female patient claimed that her injuries developed into reflex sympathetic dystrophy, a condition causing permanent debilitating pain in her ankle and leg. She alleged the hospital was vicariously and directly liable for the supervision, training and monitoring of its employees who failed to properly supervise the male patient and its failure to properly store and supervise its wheelchairs.
In 1994, the hospital’s basic professional liability insurer accepted coverage for the patient’s claim and then submitted the required claim to MCARE. In 2005, MCARE denied liability coverage for the female patient’s injuries. MCARE claimed that since the patient’s injuries were not caused by the furnishing of medical services, they did not have an obligation to provide coverage. MCARE’s position was upheld by the Commonwealth Court.
Judge Dan Pellegrini, writing for the panel, stated that MCARE was not required to provide coverage and “to hold otherwise would make MCARE responsible for not only providing coverage for all injuries caused by health care providers and their agents when furnishing medical services, but also for injuries caused by patients doing anything at all so long as a health care provider had responsibility for their care, greatly expanding the scope of the Act.” He went on to state that, “MCARE is only available when a person has sustained injury or death as a result of tort or breach of contract by a health care provider or its equivalent or by an agent thereof.” Since the male psychiatric patient could not be considered an agent of the hospital, MCARE was not required to provide insurance coverage to the hospital for the female patient’s claim.
by Mark Bauman | Apr 24, 2023 | Legal News, Medical Malpractice
A trial court judge in Allegheny County, Pennsylvania recently took the rare step of vacating a jury’s verdict in favor of the defendant doctor following a medical malpractice trial. In her written opinion, Judge Judith L. A. Friedman stated that she granted the plaintiff’s motion for a new trial in Bedillion v. Chen because the verdict of the jury “was so against the weight of the evidence as to shock the conscience of the court,” adding that her ruling was made “in the interests of justice.”
The plaintiff alleged that the defendant pulmonologist was negligent for failing to make a timely diagnosis of lung cancer. On the witness stand, the doctor testified that she had suspected all along that the plaintiff’s decedent did in fact have lung cancer, but that she resisted the biopsy necessary to make the diagnosis. Judge Friedman wrote that the doctor’s medical records contradicted this testimony, strongly suggesting that the doctor had testified untruthfully.
Judge Friedman wrote that a new trial was also warranted because she erroneously failed to grant a motion in limine of the plaintiff to bar the affirmative defense of contributory negligence. While this claim was ultimately dismissed during the course of trial, it allowed the defendant to present evidence that was irrelevant to the question of her negligence and deemed by Judge Friedman to be prejudicial, confusing, and misleading. Judge Friedman termed this decision a “serious and harmful error.”
Judge Friedman’s decision to vacate the defense verdict is on appeal to the Superior Court. In urging the Superior Court to uphold her ruling, Judge Friedman also stated that the defendant doctor should be precluded from testifying in her own defense at the new trial due to her prior testimony which, in the Judge’s view, “was in all probability intentionally untruthful on material issues.” Judge Friedman wrote that “(i)t is the duty of the court to prevent the submission of evidence that is untrustworthy of belief to a jury.”
by Mark Bauman | Apr 23, 2023 | Legal Malpractice, Legal News
A unanimous Pennsylvania Superior Court panel reversed a $3.28M legal malpractice verdict against an attorney where Plaintiff-Appelle failed to timely file his claims within the two-year statute of limitations.
In the underlying matter in Lorenzo v. Milner v. Quaglia, Plaintiff-Appelle retained defendant attorney to defend him in foreclosure proceedings relating to commercial property Plaintiff-Appelle owned. A former tenant had vacated and vandalized the property on April 16, 2001, rendering the property un-rentable. Plaintiff-Appelle sought coverage from his insurance carrier. The insurance policy included a suit limitation clause prohibiting lawsuits after two years from the date the damage occurred. Accordingly, the date by which to file a lawsuit under the insurance policy was April 16, 2003. On November 5, 2003, the insurance carrier denied coverage of Plaintiff-Appelle’s claims.
Plaintiff-Appelle subsequently discharged defendant attorney and retained a second attorney who filed suit against Plaintiff-Appelle’s insurance carrier. The suit resulted in a $4 million verdict in favor of Plaintiff-Appelle and against the insurance carrier. The insurance carrier appealed the verdict and the Pennsylvania Superior Court reversed in February 2009.
On January 31, 2011, approximately eight years after the suit limitation clause had expired, Plaintiff-Appelle filed a legal malpractice action against defendant attorney for failure to file a timely claim against his insurance carrier.
Defendant attorney filed a Motion for Summary Judgment on the basis that the alleged breach of duty occurred in 2003, when the suit limitation expired, and that Plaintiff-Appelle’s claims should be barred because the two-year statute of limitations on legal malpractice claims had run. Plaintiff-Appelle argued that the statute of limitations was tolled during the pendency of the Superior Court appeal in the litigation against his insurance carrier. The trial court denied defendant attorney’s motion for summary judgment. At the conclusion of the trial, the jury returned a verdict in favor of Plaintiff-Appelle and against defendant attorney in the amount of approximately $3.28 million. Defendant attorney then filed an appeal to the Pennsylvania Superior Court.
The Pennsylvania Superior Court noted the application of the statute of limitations is a question of law reviewed de novo. Furthermore, Pennsylvania favors strict application of the statutes of limitation. Specifically, in legal malpractice claims the statute begins to run when the attorney breaches his or her duty, and is tolled only when the client, despite the exercise of due diligence, cannot discover such breach. The Court also noted that during the underlying insurance litigation, Plaintiff-Appelle testified that as of July 27, 2006, he was aware that his insurance policy contained a two-year suit limitation. Accordingly, the Court held that even applying the discovery rule, which would have tolled the statute of limitations until July 2008, the statute of limitations had run by the time Plaintiff-Appelle commenced suit three years later in 2011. In a footnote, the Court specifically rejected Plaintiff-Appelle’s argument that he could not file a legal malpractice action until the underlying litigation was finally resolved through the appeal process and reaffirmed Pennsylvania law that the statute of limitations is not tolled in legal malpractice actions until all appeals in the underlying actions have been exhausted.
by Mark Bauman | Apr 23, 2023 | Legal News, Medical Malpractice
In a three judge panel’s opinion filed on December 21, 2010, the Commonwealth Court in West Penn Allegheny Health System d/b/a Allegheny General Hospital v. Medical Care Availability and Reduction of Error Fund (MCARE) and Kiana Townes, by Tamara Blanchard, Guardian, issued an order requiring MCARE to render an indemnity payment of up to $1,000,000 from the MCARE Fund for a plaintiff’s extended claim filed under Section 715 of the MCARE Act, without any reduction of amounts previously paid by the MCARE Fund to Allegheny General for the 1998 coverage year.
The underlying case at issue involved an incident of alleged medical malpractice in June 1998, wherein a minor plaintiff was born at Allegheny General Hospital by emergency cesarean section and thereafter suffered seizures and diagnosed with birth asphyxia and multi-organ dysfunction. In July 2008, Allegheny’s claims service company notified MCARE of a potential extended claim under Section 715 of the MCARE Act and requested that MCARE defend and indemnify Allegheny Hospital for the plaintiff’s claim. (Under the MCARE Act, an “extended claim” is a claim made against a health care provider who was required to participate in the Medical Professional Liability Catastrophic Loss Fund, is filed more than four years after the breach of contract or tort occurred, and is filed within the applicable statute of limitations.) MCARE responded that it would so indemnify Allegheny, but noted that “any exhaustion of aggregate limits may affect available coverage.” On March 26, 2010, the parties in the action settled for $1,100,000.
Prior to the settlement, Allegheny sought summary relief and filed for declaratory judgment that the MCARE Fund’s $1,000,000 per occurrence liability limit under Section 715(b) of the MCARE Act was not subject to the MCARE Fund’s annual aggregate liability limit. MCARE filed a cross-application for summary relief, alleging that Allegheny Hospital had eroded its coverage amount since 1998 and that given MCARE’s annual aggregate liability limit, only $394,917 was currently available to cover its claim. Allegheny argued that such an annual aggregate liability limit, which is detailed in other sections of the MCARE Act, did not apply to extended claims.
Turning to a statutory analysis of the MCARE Act, the Commonwealth Court noted that the duty of MCARE to defend and pay extended claims is an exception to its “role as an excess provider.” Given this statutory exception, the court held that there was a conclusive disparity between MCARE’s treatment of excess and extended claims, and as a result, the two types of claims may be treated differently under the Act.
Drawing on the Act’s provisions regarding extended claims, notably Sections 712 and 715, the court held that such provisions each encompassed a different per occurrence aggregate limit. Such differences thereby indicated that no “borrowing” of the limits from each respective provision was intended, particularly those from Section 712, which set forth annual aggregate limits for 2002 and subsequent coverage years. On the other hand, Section 715, unlike its counterpart, Section 712, bears no mention of annual aggregate limits. Thus, because such provisions were omitted from Section 715, the court concluded that the legislature intended them not to exist, and ultimately held that “MCARE Fund’s annual aggregate liability limit is not intended to apply to extended claims.” As such, Allegheny Hospital was deemed entitled to an indemnity payment of up to $1,000,000 from MCARE for the plaintiff’s extended claim under Section 715, without any reduction of amounts previously paid by MCARE for the 1998 coverage year.
The court rejected MCARE’s argument that a failure to adopt its own interpretation of the MCARE Act would lead to an increase in MCARE’s payment and assessment on participating health care providers. According to MCARE, such action would delay the gradual “phasing out” of the MCARE Fund originally intended by the Legislature. Notwithstanding these concerns, the court held that its own statutory construction would control over MCARE’s alleged public policy implications.
by Mark Bauman | Apr 22, 2023 | Legal News, Medical Malpractice
United States District Court Judge William H. Yohn, Jr. recently had the opportunity to consider whether expert testimony in a medical malpractice action should be precluded on the basis of Federal Rule of Civil Procedure 702 and Daubert v. Merrell Dow Pharmaceuticals. The case, Ellison v. United States, 753 F. Supp. 2d 468 (E.D. Pa. 2010), alleging negligence by dentists at the Philadelphia Veterans’ Medical Center, was before Judge Yohn on the basis of the Federal Tort Claims Act. Accordingly, the United States substituted itself for the named defendants and has assumed defense of the case.
The plaintiff, Christopher Ellison, experienced a debilitating stroke shortly after undergoing a tooth extraction. During the extraction, Mr. Ellison’s blood pressure dropped several times. Each time, the procedure was paused, but continued after Mr. Ellison’s blood pressure returned to an acceptable level. In support of his claims, Mr. Ellison produced expert reports by Stuart Super, DMD on the standard of care, and Scott Kasner, MD on causation.
Dr. Super opined that the dentist who performed the extraction violated the standard of care by continuing the extraction in the face of multiple episodes of hypotension without obtaining a medical consult and by failing to place Mr. Ellison under medical supervision following the procedure. The United States sought to preclude the testimony of Dr. Super on the basis that it was not reliable and not relevant on the basis of Daubert and its progeny.
First, the United States argued that Dr. Super could not establish that his opinions reflected the standard of care generally accepted by oral surgeons as opposed to his own personal beliefs. Judge Yohn held that the deposition testimony cited by the defendant in support of this argument was not dispositive. Taken as a whole, Dr. Super demonstrated that he was familiar with the standard of care based on his many years of practice in the field.
Second, the United States argued that Dr. Super could cite to no medical literature which supported his opinions. Instead, the defendant argued, Dr. Super’s opinions were contradicted by a leading dental text. Again, Judge Yohn cited to Dr. Super’s extensive experience managing similar patients, teaching students, and examining candidates for the American Board of Oral and Maxillofacial Surgery. The Court noted that Dr. Super did rely on medical literature and otherwise explained his disagreement with the literature relied on by the defendant. Judge Yohn stated, “the question is not whether Dr. Super’s opinions are correct but whether those opinions are based on ‘good grounds.’” He found that they were. He also found that Dr. Super’s opinions were relevant to the plaintiff’s claims.
The defendant also sought to preclude the opinion of Dr. Kasner that the hypotension experienced by Mr. Ellison during the extraction contributed to the development and extent of his stroke. The United States argued that Dr. Kasner’s opinion regarding the subtype of stroke suffered by Mr. Ellison was unreliable because Dr. Kasner, who was Mr. Ellison’s treating neurologist, did not perform a commonly used diagnostic technique for classifying stroke subtype. Dr. Kasner testified that he reached his conclusion by performing a differential diagnosis. The Third Circuit, Judge Yohn wrote, has repeatedly held that a differential diagnosis is a reliable methodology; a doctor is not required to rule out all alternative causes of a patient’s illness. Finally, the United States argued that Dr. Kasner’s testimony should be excluded because he could not rule out that first unavoidable episode of hypotension was the cause of Mr. Ellison’s stroke. Judge Yohn accepted the plaintiff’s argument that he could satisfy his burden in this regard by merely showing that the defendant’s negligence increased his risk of harm. Therefore, Dr. Kasner did not need to identify which episode of hypotension caused the stroke.
Accordingly, Judge Yohn denied the defendant’s motion to preclude the plaintiff’s experts and the accompanying motion for summary judgment which was based on the preclusion of one of both of Plaintiff’s experts. In allowing the case to proceed to trial, Judge Yohn stated that “The issues raised by defendants are, of course, relevant for cross-examination at trial and consideration by the fact-finder in evaluating the testimony of the various expert witnesses.”
